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Introduction
Among many things that got affected due to the coronavirus pandemic and the subsequent lockdown restrictions, circulation of physical delivery of newspapers was one of the things that suffered a huge setback. While at some places, the vendors were unable to access their distributors, at some other places, the customers did not want the newspapers any longer since they were scared of touching it due to fear of catching coronavirus. Because of these constraints, many of the newspapers started having free e-newspapers on their websites. This witnessed a huge surge on the social media where these newspapers were freely circulated. This led to the Indian Newspaper society sending an advisory to protect the interest of the newspaper industry wherein it threatened to take legal action against any person who circulates an e-newspaper and also asked the members to take strict action against it. The society also advised its members to build some product features to prevent any piracy such as features of limiting the downloading the pdf of the e-papers and inserting an invisible user identifier code so that the circulated pdfs can be traced back to the individuals who circulated it. Following this, Danik Bhaskar came out with a piece warning administrators of watsapp and telegram to be cautious about circulation of e-newspapers on their platforms.
Steps taken by Courts
The Courts have been very vigilant and active in passing injunction orders to prevent circulation of e-newspapers. The single bench of Delhi High Court in Bennett Coleman & company limited and others v. Ajay Kumar & others[3], passed an interim order on a suit filed by Bennette Coleman to prevent a website, www.sscias.com from downloading the e-newspaper copies of Times of India and Economic Times. The defendants were the owners of the website, www.sscias.com which was an educational website providing study material to the students. The court was of the opinion that the defendants were making an illegal gain by copying the e-newspapers and making it available to the students and various readers since it was resulting in revenue loss for the newspaper houses as well as drop in the sales of the physical copy and online visitors on their websites.
The Delhi High Court has also given an ex parte interim order in Jagran Prakashan Limited v. Telegram FZ LLC & Ors[4] and directed the social media application Telegram to take down the channels who are involved in illegal distribution of e-newspapers of Dainik Jagran in the pdf format on their platform. The website of the Dainik Bhaskar has a security feature whereby the newspaper could only be read in a digital form and it cannot be downloaded in the pdf format. The plaintiff alleged that there were certain channels on Telegram that were sharing e-papers in the pdf format on a regular basis. The court found the case to be prima facie in the plaintiff’s favour and granted interim injunction to Telegram.
Thus, the courts’ attitude towards the prohibition of unauthorized circulation of e-newspapers has been supportive of the newspaper houses.
TWO CATEGORIES OF NEWSPAPERS
The newspaper’s terms and conditions are very important in deciding whether the circulating of e-paper is allowed, irrespective of whether the e-paper is free of not. There are two types of e-papers, ones that have a user agreement and the ones which do not have.
- Having terms and conditions/user agreement
For instance, ‘The Hindu’ has clearly mentioned on their website the terms of sharing and circulating copies even for those who have access to the e-paper on a free trial basis. The condition says ‘“Content sharing: The contents of this e-Paper are proprietary and should not be shared with anyone. This condition doesn’t apply to sharing individual articles on social media websites for the purpose of initiating discussions and expressing opinions.” The service provided by the newspaper online is limited to an identifiable user after the person creates a new account or accesses the website through their social media account. This implies that the e-papers are not meant for circulation but are only meant for identifiable people. ‘Dainik Jagran’s’ terms and conditions also clearly stipulate that there is copyright and trademark ownership with respect to the content of the newspaper. Only for individual and personal use, the users are permitted to download or print only such extracts of such content for the use and not for any commercial purpose. The users are barred from downloading the content of the website, directly or indirectly.
Case Law
In Jagran Prakashan Limited v. Telegram FZ LLC & Ors[7], it was held that the dissemination of information through circulation of e-newspapers via channels of telegram could have been done with a malicious intention as the administrator only needs username and a telegram.e/link to create such channels and can post messages with or without a username which helps the creator in escaping the liability as in the present case.
Additionally, the copyright owner or his authorized agent has to make a request to have their compliant entertained on the alleged infringement of their intellectual property right. This is not in sync with the Information Technology (Intermediaries Guidelines) Rules, 2011. The rules provide that intermediary can take suo moto cognizance of such a matter[8].
- Free e-newspapers with no user agreement
It is this set of newspapers which is the topic of discussion and debate because there is confusion about this. The pdf of such newspapers is available online for free downloading without requiring anybody to provide any user information. The question then is, whether in case of newspapers with no express written terms and conditions, like the Indian Express, there is a right of circulation with the users?
One may argue that in such a situation where anyone can download the copy without providing any user identifiable information, there is an implied license with the user to download and circulate the copy of the e-newspaper. It can be further assumed that such an implied license of free circulation may end once the period of pandemic ends. This doctrine of implied license becomes significant in absence of a user agreement. The limits of the implied license can be determined by the test wherein it is to be seen if the act in question is necessary to give meaning to the arrangement between the parties[9].
Case Law
A very important judgment in the context of implied license is Field v. Google[10], wherein Google was sued for caching the plaintiff’s work. Caching means storing a copy of the pages that Google indexes. It allows the users to access the cached page for a copy of the page even when the original website is down. In this case, the plaintiff alleged that Google committed an infringement of the work of the plaintiff. It was alleged that every time a user accesses the Google’s cache for his work, an infringement takes place. The court however held that there was an implied license available with Google to cache the work of the plaintiff. Since with the use of the meta-tag, the websites could easily opt out from having their content cached, the plaintiff’s failure to do the same meant an implied license for Google to cache its content. This conclusion stems out from the genuine understand that it is not possible for Google to individually reach out to every website owner and ask if it could cache its work. Therefore, the doctrine of implied license can very well be applied in case of free e-newspapers, which are available for free downloading without any user identification, without there being any user agreement on the website. While it can be argued that there can be no copyright protection over the news and facts, the original expression of such news and facts can be protected. E-newspapers which are subscription based and not free of cost are not in the public domain and can be accessed only on the payment of the subscription fees by an identifiable user. Thus, the unauthorized dissemination and sharing of such subscription based newspapers can attract liability under the copyright law as this will not only result in digital piracy but also financial loss for the newspaper industry.
Further, there can be no bar on circulation of pdfs of free e-newspapers. Outside of the terms and conditions provided by the newspapers on their websites, Section 52(1)(a)(ii) and (iii) of the Copyright Act deal with the provision of ‘fair use’[11]. This provision allows the users to copy and circulate the material if it is for the purpose of criticism/review or reporting of current events. Thus, it can very well be argued that the limited circulation of the articles for the purpose of criticism, review of reporting shall be covered under the exception of ‘fair use’ under the copyright law. But even here, the downloading and sharing of the entire copy of e-papers shall not pass the musters unless the work is transformative, which is one of the four factors used by the American courts to determine fair dealing of the work[12].
CONCLUSION AND SUGGESTIONS
It can safely be concluded that the right of circulation by the individual is not dependent upon the e-paper being available on subscription or for free but it is dependent upon the terms and conditions of the newspapers on its website as well as on the existence and limits of implied license. Nonetheless, the step taken by Dainik Jagran to stop the illegal circulation of the e-newspapers could be said to be great move to protect the newspaper industry from digital piracy. This has also highlighted a great need of a user agreement by the websites. While there may be newspaper houses that would be in favour of free circulation of news in the current pandemic unbothered by sharing and downloading of its content by unidentified users, there would be some newspaper houses that would want to protect their already disturbing revenue, the rights of the content creators and would not be in favour of unauthorized circulation.
The best way out for them would be to stipulate this clearly in their terms and conditions that circulation in any form is illegal and will warrant legal action. They need to amend their copyright policies and terms of usage and include within specific terms about copyright infringement by way of sharing and circulation of e-newspapers on social media platforms. The newspaper houses must also be vigilant in sending notices of copyright infringement to the individuals/channels that are found violating its terms and conditions and inform them about the consequences of such illegal actions.
References:
[1] ‘Fears of Police, Hinder Newspaper delivery across India’, 26 March 2020, The Wire, available at https://thewire.in/media/newspaper-delivery-coronavirus-police-lockdown (Last Visited on September 16, 2020).
[2] Anto T. Joseph, ‘Newspapers want to stop free circulation of epapers. Is it a good idea in a pandemic?’, May 4, 2020, available at https://www.newslaundry.com/2020/05/04/newspapers-want-to-stop-free-circulation-of-epapers-is-it-a-good-idea-in-a-pandemic (Last Visited on September 16, 2020).
[3] CS (COMM) 21/2019.
[4] 2020 SCC, Online Del 615.
[5] Terms and Conditions, The Hindu, available at https://epaper.thehindu.com/Home/TermsAndCondition (Last Visited on September 16, 2020).
[6] Terms and Conditions, Dainik Jagran, available at https://epaper.jagran.com/epaper/ (Last Visited on September 16, 2020).
[7] Supra Note 3.
[8] Information Technology (Intermediary Guidelines) Rules, 2011.
[9] Orit Fischman Afori, Implied License- An Emerging New Standard in Copyright Law, Santa Clara Computer and High Technology Law Journal, Vol. 25, 2008
[10] 412 F. Supp. 2d 1106 (2006).
[11] Indian Copyright Act 1957 § 52(1)(a)(ii) & (iii).
[12] The Chancellors Masters & Scholars v. Narendra Publishing House, (2008) 1 SCC 1.
